Earlier this week, NLRB regional director Peter Sung Ohr concluded the football players can form a union. Part of Ohr's reasoning was that "it cannot be said the Employer's scholarship players are "primarily students," citing the 50 to 60 hours players spend per week on football that represents "many more hours than the players spend on their studies."

U.S. District Judge Claudia Wilken has now included Ohr's 24-page ruling into the O'Bannon antitrust case, which is attempting to end the NCAA's restrictions prohibiting football and men's basketball players from making money off their name, image and likeness. Northwestern is appealing the regional NLRB ruling.

Michael Hausfeld, the lead attorney for the O'Bannon plaintiffs, said the NLRB decision "totally undercuts" some of the NCAA's procompetitive justifications: amateurism and integrating education and athletics.

"What this judge held is they are athletes first and foremost," Hausfeld said. "That's not what definition of amateurism is, and (the NCAA) can't contend the findings. They have a problem. He ruled that they were employees because they were. If they're employees, they can be paid."

The NCAA and the O'Bannon and Sam Keller likeness plaintiffs have held two court-ordered mediation sessions over the past two weeks with seemingly no movement. The trial is scheduled to start June 9.

"There's plenty of room to compromise," Hausfeld said. "But in order to understand what's on the table, you have to bring your chair to the table."

The NCAA had until today to inform the court if it intends to continue mediation. NCAA spokeswoman Stacey Osburn said the NCAA complied with that court order, "but we don't have additional details to share due to the confidentiality order."

The NCAA declined to comment about the inclusion of the NLRB ruling into the O'Bannon case. The NCAA has said it disagrees with the NLRB that Northwestern football players are employees.